Standing Committee B

[Mr. Win Griffiths in the Chair]

Pensions Bill

Motion made, and Question proposed, 
That the Order of the Committee of 9th March 2004 be amended by the substitution of the following Table for the Table referred to in paragraphs (2), (3) and (4) of that Order— 
 TABLE   SittingProceedingsTime for conclusion of proceedings 16th March (9.30 a.m.)Clauses 1 to 3, Schedule 1, 11.25 a.m. Clauses 4 to 11, Schedule 2,  Clauses 12 to 60, Schedule 3,  Clauses 61 to 76, Schedule 4 and Clauses 77 to 80 (so far as not previously concluded). 16th March (2.30 p.m.)Clauses 220 and 221, Schedule 10, Clauses 222 and 223, Clauses 191 to 193, Schedule 9 and Clauses 194 and 195.— 18th March (9.30 a.m.)Clauses 220 and 221, Schedule 10, Clauses 222 and 223, Clauses 191 to 193, Schedule 9 and Clauses 194 and 195 (so far as not previously concluded).11.25 a.m. 18th March (2.00 p.m.)Clauses 196 to 219 and Clauses 178 to 190— 23rd March (9.30 a.m.)Clauses 196 to 219 and Clauses 178 to 190 (so far as not previously concluded).— 23rd March (2.30 p.m.)Clauses 196 to 219 and Clauses 178 to 190 (so far as not previously concluded)8.00 p.m. 25th March (9.30 a.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177.— 25th March (2.00 p.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 30th March (9.30 a.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 30th March (2.30 p.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 1st April (9.30 a.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 1st April (2.00 p.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 20th April (9.30 a.m.) Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).— 20th April (2.30 p.m.)Clauses 81 to 83, Schedule 5, Clauses 84 to 123, Schedule 6, Clause 124, Schedule 7, Clauses 125 to 162, Schedule 8 and Clauses 163 to 177 (so far as not previously concluded).8.00 p.m.  22nd April (9.30 a.m.)Clauses 224 to 242, Schedule 11, Clause 243, Schedule 12, Clauses 224 to 248.11.25 a.m. 22nd April (2.00 p.m.) New Clauses, New Schedules and remaining proceedings on the Bill.5.00 p.m. —[Malcolm Wicks.] 
—[Malcolm Wicks.]
  Mr. Nigel Waterson (Eastbourne) (Con): I do not want to detain the Committee long on this motion, because we have a lot to say about the business that is guillotined to finish by the end of this morning's sitting. However, here we are again—barely a week into the Committee stage—with a change in the batting order. Although I declared an interest on Second Reading, it may be advisable to do so again now, because I have private pension provision. We consented to the revised programme motion, not least because if we had not done so, the Government would have passed it anyway. Our discussion on the motion gives me the opportunity to put down a couple of markers about the future conduct of our proceedings now and on Report. The Government have been open about the fact that they intend to table a substantial number of amendments on a range of issues. We have already discussed many Government amendments, but they were concerned with minor drafting matters and polishing up the Bill. We are now awaiting Government amendments affecting some meaty issues, some of which are related to tomorrow's Budget. There seems to be difficulty in attaining consistency between the regulator's powers and functions and the proposed pension protection fund, although that should have been thought through before the Bill was published.  I think that the Minister accepts my concerns about such matters. For example, we have allowed the traditional one sitting to deal with new clauses at the end of our proceedings in Committee, but if the Government have tabled a raft of new clauses they may be in difficulty. If they decide to extend the duration of the Committee stage, we would like to know about that sooner than later—and I also make an urgent plea about the amendments. We understand that big issues are involved, and the Government should make their amendments public before we debate them in Committee not only for our sake, although that would be nice, but for the outside  organisations and individuals that often have a legitimate interest in our consideration of the Bill, and may wish to have their thoughts about proposed new parts of it transmitted through us.  It is important to receive a clear undertaking from the Minister that the Government are on top of the draftsmen day and night, to ensure that we do not get into major difficulties. I am talking not only about the Bill getting into difficulties, but about the burdens and problems that that causes for the Opposition and for outside organisations. Unless we receive early information about what amendments will be tabled, I cannot emphasise too much the fact that potential problems lie ahead.  Let us not lose sight of the draft regulations, either. Great tranches of the Bill rely heavily on regulations, and it would be meaningless to debate them until we have sight of them. We have not yet seen even one draft regulation; I imagine that the available manpower is too busy working on the amendments. I shall leave it there for the moment, Mr. Griffiths. I am sure that you appreciate that we shall face difficulties if the problem is not rectified.  Mr. Steve Webb (Northavon) (LD): Good morning, Mr. Griffiths. I was not aware of last night's meeting of the Programming Sub-Committee—the necessary card did not reach me—so I apologise for not making my observations then, when it might have slightly more constructive to do so. My only worry about amending the programme motion is that the only times when our mental energies will be devoted to state pensions will be this afternoon and Thursday morning. The rest of the Bill is principally about private sector regulation and the pension protection fund, which is all about private sector provision. At the end of our consideration, however, the new clauses selected for debate—new clause 5 on married women's pensions and new clause 6 on overseas pensions—are to be discussed at the final Thursday afternoon sitting after Easter. Had I attended the meeting last night, I would have asked whether it would have made more sense to deal with all state pension issues in one go. We could then have left those mentally, and dealt with private pension issues for the rest of our deliberations, rather than discussing state pensions today and on Thursday, doing nothing on them for a month, and suddenly discussing them again at the fag-end sitting on the final Thursday afternoon, which may get swamped with Government new clauses anyway. We may not even debate those new clauses at all. I will not make a speech on this subject, but I would be grateful for a response from the Minister.  At the end of this morning's sitting, we could consider whether we might start this afternoon by tweaking our timetable. The new clauses that I mentioned would not have been reached until Thursday anyway, so there would be time to prepare any necessary briefings. I will not go to the wall on this, but that would have been my preference.  The Minister for Pensions (Malcolm Wicks): Good morning, Mr. Griffiths. It is good to see you again, as  winter turns to spring. Having started on that poetic note, I should say that the hon. Member for Eastbourne (Mr. Waterson) made some perfectly reasonable points. I will not rehearse again the circumstances that led us to this situation. I recognise that the order in which we are considering the Bill causes inconvenience to the Committee. I discussed that at our first sitting, and I apologise again to the Committee for that inconvenience. On the substance of the concerns raised by the hon. Members for Eastbourne and for Northavon (Mr. Webb), we can keep a watching brief through the usual channels on whether one final sitting to wrap up new clauses will be sufficient—although logically there will always be one final sitting. That may not be sufficient; if not, we will be sensible and get together to talk about scheduling another sitting or so. I am happy to give that commitment. We are drafting the amendments as quickly as we can, and when we can share them with the Committee, we will. I am happy to give that reassurance to the hon. Member for Eastbourne.  We will consider the point raised by the hon. Member for Northavon, but I am not promising anything. We cannot consider it this afternoon, but once we have fully understood his concern and considered the details, we may accommodate his wishes on Thursday morning if we can. As I said, I cannot promise that we shall.  Question put and agreed to.  Clause 57 Information supplied to the Regulator by corresponding overseas authorities  The Parliamentary Under-Secretary of State for Work and Pensions (Mr. Chris Pond): I beg to move amendment No. 35, in clause 57, page 37, leave out lines 6 and 7 and insert—  '(c) by or on behalf of—  (i) the Regulator, or  (ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c.42)) which receives the information directly or indirectly from the Regulator,  for any of the purposes specified in section 17(2)(a) to (d) of the Antiterrorism, Crime and Security Act 2001 (c.24) (criminal proceedings and investigations).'.

Nigel Waterson: I do not want to detain the Committee long on this motion, because we have a lot to say about the business that is guillotined to finish by the end of this morning's sitting. However, here we are again—barely a week into the Committee stage—with a change in the batting order. Although I declared an interest on Second Reading, it may be advisable to do so again now, because I have private pension provision. We consented to the revised programme motion, not least because if we had not done so, the Government would have passed it anyway.
 Our discussion on the motion gives me the opportunity to put down a couple of markers about the future conduct of our proceedings now and on Report. The Government have been open about the fact that they intend to table a substantial number of amendments on a range of issues. We have already discussed many Government amendments, but they were concerned with minor drafting matters and polishing up the Bill. We are now awaiting Government amendments affecting some meaty issues, some of which are related to tomorrow's Budget. There seems to be difficulty in attaining consistency between the regulator's powers and functions and the proposed pension protection fund, although that should have been thought through before the Bill was published. 
 I think that the Minister accepts my concerns about such matters. For example, we have allowed the traditional one sitting to deal with new clauses at the end of our proceedings in Committee, but if the Government have tabled a raft of new clauses they may be in difficulty. If they decide to extend the duration of the Committee stage, we would like to know about that sooner than later—and I also make an urgent plea about the amendments. We understand that big issues are involved, and the Government should make their amendments public before we debate them in Committee not only for our sake, although that would be nice, but for the outside 

 organisations and individuals that often have a legitimate interest in our consideration of the Bill, and may wish to have their thoughts about proposed new parts of it transmitted through us. 
 It is important to receive a clear undertaking from the Minister that the Government are on top of the draftsmen day and night, to ensure that we do not get into major difficulties. I am talking not only about the Bill getting into difficulties, but about the burdens and problems that that causes for the Opposition and for outside organisations. Unless we receive early information about what amendments will be tabled, I cannot emphasise too much the fact that potential problems lie ahead. 
 Let us not lose sight of the draft regulations, either. Great tranches of the Bill rely heavily on regulations, and it would be meaningless to debate them until we have sight of them. We have not yet seen even one draft regulation; I imagine that the available manpower is too busy working on the amendments. I shall leave it there for the moment, Mr. Griffiths. I am sure that you appreciate that we shall face difficulties if the problem is not rectified.

Steve Webb: Good morning, Mr. Griffiths. I was not aware of last night's meeting of the Programming Sub-Committee—the necessary card did not reach me—so I apologise for not making my observations then, when it might have slightly more constructive to do so. My only worry about amending the programme motion is that the only times when our mental energies will be devoted to state pensions will be this afternoon and Thursday morning. The rest of the Bill is principally about private sector regulation and the pension protection fund, which is all about private sector provision.
 At the end of our consideration, however, the new clauses selected for debate—new clause 5 on married women's pensions and new clause 6 on overseas pensions—are to be discussed at the final Thursday afternoon sitting after Easter. Had I attended the meeting last night, I would have asked whether it would have made more sense to deal with all state pension issues in one go. We could then have left those mentally, and dealt with private pension issues for the rest of our deliberations, rather than discussing state pensions today and on Thursday, doing nothing on them for a month, and suddenly discussing them again at the fag-end sitting on the final Thursday afternoon, which may get swamped with Government new clauses anyway. We may not even debate those new clauses at all. I will not make a speech on this subject, but I would be grateful for a response from the Minister. 
 At the end of this morning's sitting, we could consider whether we might start this afternoon by tweaking our timetable. The new clauses that I mentioned would not have been reached until Thursday anyway, so there would be time to prepare any necessary briefings. I will not go to the wall on this, but that would have been my preference.

Malcolm Wicks: Good morning, Mr. Griffiths. It is good to see you again, as

 winter turns to spring. Having started on that poetic note, I should say that the hon. Member for Eastbourne (Mr. Waterson) made some perfectly reasonable points. I will not rehearse again the circumstances that led us to this situation. I recognise that the order in which we are considering the Bill causes inconvenience to the Committee. I discussed that at our first sitting, and I apologise again to the Committee for that inconvenience.
 On the substance of the concerns raised by the hon. Members for Eastbourne and for Northavon (Mr. Webb), we can keep a watching brief through the usual channels on whether one final sitting to wrap up new clauses will be sufficient—although logically there will always be one final sitting. That may not be sufficient; if not, we will be sensible and get together to talk about scheduling another sitting or so. I am happy to give that commitment. We are drafting the amendments as quickly as we can, and when we can share them with the Committee, we will. I am happy to give that reassurance to the hon. Member for Eastbourne. 
 We will consider the point raised by the hon. Member for Northavon, but I am not promising anything. We cannot consider it this afternoon, but once we have fully understood his concern and considered the details, we may accommodate his wishes on Thursday morning if we can. As I said, I cannot promise that we shall. 
 Question put and agreed to.

Clause 57 - Information supplied to the Regulator by corresponding overseas authorities

Chris Pond: I beg to move amendment No. 35, in
clause 57, page 37, leave out lines 6 and 7 and insert— 
 '(c) by or on behalf of— 
 (i) the Regulator, or 
 (ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c.42)) which receives the information directly or indirectly from the Regulator, 
 for any of the purposes specified in section 17(2)(a) to (d) of the Antiterrorism, Crime and Security Act 2001 (c.24) (criminal proceedings and investigations).'.

Win Griffiths: With this it will be convenient to discuss Government amendments Nos. 36 to 40, and 68 to 71.

Chris Pond: These amendments are fairly technical and non-contentious, so if the Committee is happy with them, I shall not make a speech about them.
 Amendment agreed to. 
 Amendment made: No. 36, in 
clause 57, page 37, line 7, at end insert— 
 '( ) Section 18 of the Antiterrorism, Crime and Security Act 2001 (c.24) (restriction on disclosure of information for overseas purposes) has effect in relation to a disclosure authorised by subsection (2) as it has effect in relation to a disclosure authorised by any of the provisions to which section 17 of that Act applies.'.—[Mr. Pond.]
 Clause 57, as amended, ordered to stand part of the Bill. 
 Clause 58 ordered to stand part of the Bill.

Clause 59 - Disclosure for facilitating exercise of functions by the Board

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: It may be helpful if I mention my concerns first, and the Under-Secretary then helps me, rather than doing things the other way round.
 I am rather bemused by clause 59. I do not know whether it is just an example of sloppy drafting, but it is bizarre. Some tight rules are, quite properly, set out on the disclosure of information. We talked in previous debates about how important it is to have rules governing that. Opposition Members even tried to introduce amendments about the consequences, such as compensation or damages, if information were disclosed improperly or inappropriately. However, having gone to all that trouble, I find it odd that the clause seems to drive a coach and horses through the rest of this part of the Bill. 
 The clause says that despite section 56—currently clause 56, which we debated last week and which is fairly clear—restricted information can still be disclosed 
''for the purpose of enabling or assisting the Board of the Pension Protection Fund to exercise its functions.''
 Perhaps we will get an echo of that when we come to the clauses dealing with the PPF. However, on what basis can it decide to disclose information that would not normally be other than restricted? If it is to have that power, should it not be set out in some detail in this part of the Bill? Is not this an attempt by a draftsman to leave a large opening to allow the previous clauses, particularly clause 56, to be trampled over in a relevant case? I am rather puzzled about the purpose of the clause, and I should be grateful for the Under-Secretary's help.

Chris Pond: My apologies to the Committee if my voice sounds as if I am speaking through a pillow this morning. The purpose of the clause is fairly straightforward. There was some discussion last week about the relationship between the regulator and the board of the pension protection fund. All that we are seeking to do through the clause is ensure that the information that is transferred is protected. Any restricted information provided to the regulator, or to any person by the regulator, must not be disclosed unless it has the consent of the information provider, or the person to whom it relates. Information provided to the regulator by the Inland Revenue must not be disclosed without prior consent from the commissioners of the Inland Revenue or Customs and Excise.
 We are trying to ensure that during the transfer of information between the regulator and the board of the pension protection fund—which the Committee agreed last week was necessary and sensible, because it allowed the PPF to perform its functions and 
 protected members' interests—there is a flow of information with proper safeguards built in to its use and information providers are protected. 
 I hope that that clarifies what we are trying to do with clause 59.

Nigel Waterson: Not entirely. However, I do not want to press the pillow more firmly onto the Under-Secretary's face, so for the moment I shall let that go.
 Question put and agreed to. 
 Clause 59 ordered to stand part of the Bill. 
 Clause 60 ordered to stand part of the Bill.

Schedule 3 - Restricted information held by the Regulator: certain permitted disclosures to facilitate exercise of functions.

Question proposed, That this schedule be the third schedule to the Bill.

Steve Webb: The first column of the schedule lists the persons to whom information may be disclosed and the second lists the functions in relation to which they may act as recipients of such information. The last body listed is the Gaming Board for Great Britain. I was a little bit puzzled about why it could get information from the pensions regulator for functions under the Gaming Act 1968 or the Lotteries and Amusements Act 1976. Perhaps the Under-Secretary could tell us why.

Chris Pond: I rather suspected that that question would be raised. Currently, in relation to the Gaming Board for Great Britain, a trustee suspected of theft from pension funds who also holds a gaming licence—an example of this did occur—would not be within the reach of the tentacles of the Occupational Pensions Regulatory Authority because the authority would be unable to disclose that fact to the Gaming Board. Unless a criminal offence is clearly being committed, OPRA with its current powers cannot disclose information, even though there is a clear irregularity. It is because of that example that the Gaming Board is listed in schedule 3.
 Question put and agreed to. 
 Schedule 3 agreed to.

Clause 61 - Other permitted disclosures

Amendments made: No. 37, in 
clause 61, page 38, leave out lines 11 and 12 and insert— 
 '(a) by or on behalf of— 
 (i) the Regulator, or 
 (ii) any public authority (within the meaning of section 6 of the Human Rights Act 1998 (c.42)) which receives the information directly or indirectly from the Regulator, 
 for any of the purposes specified in section 17(2)(a) to (d) of the Antiterrorism, Crime and Security Act 2001 (c.24) (criminal proceedings and investigations),'.
 No. 38, in 
clause 61, page 38, line 13, leave out 'other'. 
No. 39, in 
clause 61, page 39, line 27, at end insert— 
 '( ) Section 18 of the Antiterrorism, Crime and Security Act 2001 (c.24) (restriction on disclosure of information for overseas purposes) has effect in relation to a disclosure authorised by subsection (2) as it has effect in relation to a disclosure authorised by any of the provisions to which section 17 of that Act applies.'.—[Mr. Pond.]
 Clause 61, as amended, ordered to stand part of the Bill.

Clause 62 - Disclosure of information by the Inland Revenue

Amendment made: No. 40, in 
clause 62, page 39, line 37, after '(2)' insert 
 'above or section 19 of the Antiterrorism, Crime and Security Act 2001 (c.24) (disclosure of information held by revenue departments)'.—[Mr. Pond.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Nigel Waterson: I am interested in another point of clarification. I am always intensely nervous about provisions that allow different agencies to swap information, and I am even more nervous when one of those agencies is the Inland Revenue—

Steve Webb: Is the hon. Gentleman declaring an interest?

Nigel Waterson: I am not declaring an interest in this instance—not so far, anyway. We should not pass this sort of provision on the nod, because the principle is important. I am open to all the arguments about tracking down fraudsters and detecting benefit claimants' unjustified claims, but we have to be careful whenever we allow such pooling of information.
 The clause refers to information moving in one direction, from the Inland Revenue to the regulator. I am not sure where the equivalent provision is for information going from the regulator or the PPF to the Inland Revenue—no doubt the Under-Secretary will able to point that out if it is in the Bill; we may have just passed it. I am sure that there is a two-way street. 
 Can the Under-Secretary tell the Committee what the limits are, in regulation or primary legislation, on the Inland Revenue giving this sort of information to the regulator? I am not suggesting that the new improved regulator should not receive information that is crucial to the issues that it will be tackling, but I assume that Inland Revenue legislation quite properly restricts the nature of the information that the revenue can pass to outside bodies such as the regulator. That is my sole concern.

Chris Pond: We shall continue our pillow talk on these matters. The hon. Gentleman is correct to say that there is a two-way street. As he will be aware, clause 62 largely replicates section 109 of the Pensions Act 1995 and relates to the disclosure of information by the Inland Revenue to the regulator. It provides that the Inland Revenue will not be bound by the restrictions imposed by section 182 of the Finance Act 1989, so long as the information is used by the
 regulator to discharge its functions. The regulator must treat information disclosed to it by the Inland Revenue as restricted information. I hope that answers the hon. Gentleman's question in part. The regulator must not disclose that information unless the commissioners of the Inland Revenue or Customs and Excise have given permission or—this is only a slight difference—for the purposes of any criminal proceedings.
 Perhaps it would help the Committee if I gave an example of the type of criminal proceedings that we have in mind. Some offences that relate to pension schemes are not offences under the pensions legislation—theft, for example. We want to ensure that information disclosed by the Inland Revenue to the regulator can be used in criminal proceedings for such offences. I know that the hon. Gentleman will be keen to know what type of tax information may be relevant to the regulator's functions, and I am eager to enlighten him. Tax information could, for example, be details of how many employees an employer has. The hon. Member for Northavon, who has expressed considerable interest in those matters in our earlier proceedings, will know that employee numbers are relevant to enable the regulator to check whether an employer is required to designate a stakeholder scheme. 
 On the specific point about the gateway to the regulator from the Inland Revenue, I am advised that that is specified in the list in schedule 3—page 177, line 10. Any information that the regulator receives from the Inland Revenue under clause 62 must be treated as restricted information. I hope that that will give sufficient reassurance to the hon. Member for Eastbourne, despite his anxiety about any involvement of the Inland Revenue in the receipt of information. 
 Question put and agreed to. 
 Clause 62, as amended, ordered to stand part of the Bill.

Clause 63 - Publishing reports

Nigel Waterson: I beg to move amendment No. 245, in
clause 63, page 40, line 11, leave out 'absolutely privileged' and insert 'subject to qualified privilege'.
 We now get to the meat of today's debate. As we are talking about defamation, I will take this opportunity to put right a prima facie defamatory remark that was made about me in my absence by the Minister last week. He had the temerity to suggest that I might be a Manchester United supporter, the sub-plot being that because I am some sort of effete southerner I would be a natural supporter of Manchester United. I am not a southerner—and as for effete, I will leave that to you to decide, Mr. Griffiths. I am, of course, an enthusiastic supporter of Eastbourne Borough football club, which might not have made it on to the radar screen of many Committee members, but has a great future ahead of it. 
 The amendment concerns the sole point that I want to raise on the clause. I do not propose to provoke a clause stand part debate, because it is eminently sensible that the regulator should publish reports and that they should be as wide-ranging, detailed and informative as possible. As is clear from the amendment, I am concerned about whether we should simply put the stamp of absolute privilege on anything contained in such a report. 
 To anticipate the possible killer point in the Under-Secretary's reply, I must add that a mere glance at section 103 of the Pensions Act 1995 tells us, albeit in a form slightly different from the provision before us, that: 
''For the purposes of the law of defamation, the publication of any matter by the Authority shall be absolutely privileged.''
 Far be it for me to claim that the Conservatives have a monopoly of wisdom on those matters. However, I do not think that we as a Committee should simply translate from one piece of legislation to another a measure as important as this without at least giving it proper consideration. 
 Hon. Members will know that there is a major distinction between absolute and qualified privilege. It is a shame that my hon. Friend the Member for Tatton (Mr. Osborne) is temporarily absent, because his predecessor gave his name to one of the major recent cases on privilege for parliamentary proceedings. Fortunately that case is not relevant to the point that I am arguing—

Chris Pond: Oh, do tell us about it.

Nigel Waterson: The Under-Secretary eggs me on, but we have a lot to get through this morning—and given the muffled nature of his egging on, I will move rapidly to my next point before he falls off his chair.
 For the benefit of hon. Members who are not lawyers, and have not sued or been sued for defamation, I should explain that in one of the leading textbooks on the subject, Peter Carter-Ruck states that 
''absolute privilege is a complete bar to an action for defamation no matter how false or malicious the words complained of may be''
 and that 
''it is in the public interest that people should be able to speak and write with complete freedom unhampered by any underlying fear, real or imaginary, that subsequently they may have to answer for what they have said.''
 He also says that the point about absolute privilege is that, as the term suggests, it is absolute, and 
''it is not destroyed by malice.''
 I will address the relevance of the term ''malice'' shortly. 
 Carter-Ruck also makes the point that areas of activity in which absolute privilege applies are, rightly, 
''strictly defined and will not be readily extended.''
 It applies to parliamentary and judicial proceedings, to reports of both such proceedings and to certain other defined categories. As I have said, there is a leading recent case concerning parliamentary proceedings, which need not concern us. 
 Certain other instances are clearly set out in statute. For example, the Parliamentary Commissioner Act 1967 sets out that the holder of that post should enjoy absolute privilege when making reports to the Houses of Parliament; the same goes for the local administration and health service commissioners and the Monopolies Commission—as the Competition Commission was called when Carter-Ruck wrote the book. There is a fairly significant list of bodies that are in a position to issue reports that enjoy absolute privilege. 
 However, Carter-Ruck also states: 
''Even those modern creatures of statute such as the ombudsmen and the Monopolies Commission . . . are included as a matter of public policy because their functions are in some degree akin to judicial functions.''
 Is the kind of report referred to in clause 63 likely to be comparable to a judicial function? No, because they will simply be reports of the sorts of cases that the regulator has been dealing with. Will the Under-Secretary be a little more forthcoming than the clause about what kind of useful things will usually appear in those reports? There is no basis for arguing for absolute privilege on the strength of the function being quasi-judicial, as described by Carter-Ruck. 
 Why not apply qualified privilege? There is an onus on the people who are arguing for absolute privilege to show that qualified privilege will not be sufficient. Qualified privilege is quite a hefty defence against a claim for defamation. As Carter-Ruck says, where there is qualified privilege, 
''an action will not succeed unless the plaintiff can prove that in publishing the words complained of the defendant was actuated by express malice, that is to say by spite or ill-will or some other dominant improper motive . . . Malice defeats a defence of qualified privilege; it is wholly irrelevant to absolute privilege.''
 Carter-Ruck sets out some of the statutory and other circumstances in which statements, reports, proceedings and reports of proceedings are subject not to absolute privilege but to qualified privilege. The big distinguishing factor between the two forms of privilege is malice. He sets out some examples of statements made in certain classes of report that attract only qualified privilege. I shall not weary the Committee with them, but it is clear that the situation has been examined on a case-by-case basis. 
 The Defamation Acts of 1952 and 1996 set out clear rules about broadcasts, newspapers and so on. Following the Neill committee in 1991, the law was changed and expanded. As long as a body gives a fair and accurate report of proceedings—providing, for example, a fair and accurate copy of a register or an extract of a register—it happily comes under the rules relating to qualified privilege. 
 That brings me to the issue of malice. Carter-Ruck says: 
''Express malice may be defined as a desire to injure the person defamed, or any other wrong or improper motive, which is the dominant motive for the publication.''
 As he says, malice must be the dominant motive for publication. Why on earth should we underwrite a situation in which the new regulator can put into the public domain a report that is, prima facie, defamatory 
 to an individual, and for which the dominant motive is malice? Why did we underwrite such a situation in relation to OPRA in 1995?

Vera Baird: Is it not better for the regulator to be absolutely protected against the sort of action in which the late Robert Maxwell used to specialise? When anything was to be published, he would heave a writ at it. A determination as to whether publication would be malicious is not made for two or three years, until the matter comes to court. In the meantime, publication is held up. I am sure that the hon. Gentleman is satisfied that deliberately malicious publication by the regulator would be covered by the offence of misfeasance in a public office anyway, so he has nothing to worry about.

Nigel Waterson: I am grateful for that reassurance from a QC. I would hope that the regulator would not be intimidated by the kind of tactics in which, as the hon. and learned Lady rightly points out, the late Robert Maxwell was a specialist. That consideration should therefore not apply. As for misfeasance, I am sure that there ought to be other penalties for someone in a public office of that kind who issues such a report. However, to come back to the main thread of my argument, we cannot possibly be talking about a serious, focused new regulator even remotely considering putting something into the public domain for which the dominant motive is malice.
 Once qualified privilege is established—we can bring that about in an instant by amending the clause—the onus will lie on the plaintiff to prove express malice. That is quite a serious burden of proof. To put hon. Members' minds at rest, I can tell them that mere negligence or carelessness as to the truth of a statement are irrelevant. As Carter-Ruck said: 
''what the law requires is not that the privilege should be used carefully but that it should be used honestly'',
 and he referred to the case of Horrocks v. Lowe. 
 I am arguing that we should not simply put a chunk of the 1995 legislation into the Bill unprobed. It is possible to envisage circumstances in which serious damage is done by a report from the regulator. I see no particular reason why the kind of person who might suffer significantly if such a report were wrong should be barred from taking any action simply because we attach absolute privilege to the report. 
 I do not think that there is any argument that says that there is a quasi-judicial function involved. There is simply a totally reasonable requirement, not that the regulator should make sure that the report is right and accurate—that does not cause a problem with qualified privilege—but that there should be no malice involved. Malice should not be the predominant motive in putting such a report into the public domain.

Malcolm Wicks: I thank the hon. Gentleman for his amendment, which I do not consider malicious. It would qualify the regulator's absolute privilege when publishing reports of cases. As he anticipated, I must tell him that the purpose of the absolute privilege is to ensure that when the regulator judges it appropriate—
 for example, in the interests of schemes or their administrators—it may publish reports of certain cases. Ensuring the regulator's legal privilege in that way means that it will not be prevented from publishing reports out of fear of legal claims against it. Publishing reports may also provide a degree of accountability, as they will evidence the way in which the regulator has fulfilled its functions in response to specific cases. The publishing of reports has proved a useful tool for OPRA, which enjoys an absolute privilege when publishing such reports, and that tool was provided, as the hon. Gentleman said, by section 103 of the now famous Pensions Act 1995.
 The hon. Gentleman will be glad to hear—I am pleased to see that he is sitting down at this moment—that I accept his amendment in principle. However, the nature of the qualification should be detailed in the Bill. I hope that I am encompassing the hon. Gentleman's concerns if I say that the Bill should specify that the publication of any matter will be privileged unless the publication is shown to have been undertaken with malice. That will ensure that the regulator is not deterred from publishing reports so long as it does so in good faith. If the hon. Gentleman is willing to accept that, I shall table an amendment along those lines on Report.

Nigel Waterson: I am delighted that the Minister has seen the wisdom of my amendment. I am most grateful for his indication that the principle is acceptable to the Government. I have no particular pride in ownership of this amendment, so if the Minister's advisers tell him that it would be better to spell things out in the Bill, who am I to argue? I am delighted by the Minister's constructive approach, and I look forward to that being replicated in response to future amendments. I am grateful, and I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 63 ordered to stand part of the Bill.

Clause 64 - Codes of practice

Malcolm Wicks: I beg to move amendment No. 41, in
clause 64, page 40, line 22, after 'legislation' insert 
 '(other than any enactment contained in or made by virtue of Part 2)'.

Win Griffiths: With this it will be convenient to discuss Government amendments Nos. 42 to 45.

Malcolm Wicks: These amendments are of a technical or drafting nature, intended either to clarify meaning or correct drafting errors.
 Amendment agreed to. 
 Amendment made: No. 42, in 
clause 64, page 40, line 28, leave out from 'imposed' to end of line 30 and insert 
 'on trustees or managers of occupational pension schemes by, or by virtue of, Part 3 (scheme funding);'.—[Malcolm Wicks.]

Nigel Waterson: I beg to move amendment No. 234, in
clause 64, page 41, line 5, at end insert— 
 '(3A) Any code of practice issued by the Regulator must include an analysis of the costs and benefits of the code.'

Win Griffiths: With this it will be convenient to discuss amendment No. 235, in
clause 65, page 41, line 32, after 'code' insert 
 'which includes a draft analysis of the costs and benefits of the code'.

Nigel Waterson: These two amendments are inspired by the Association of British Insurers, which may well have briefed other Committee members too, so they will know what the thrust of my amendments is. Both amendments welcome the idea that there will be codes of practice; no one argues about the principle that codes of practice are worth having. However, in connection with clauses 64 and 65, there should be a draft analysis of the costs and benefits of the codes. That seems only sensible, and in line with best practice. The Bill allows the regulator to issue codes of practice covering a whole range of issues—indeed on any issue, really, as long as it is related to pensions legislation. However, the concern of the Association of British Insurers—and, I am sure, many other outside bodies—is that any such code should reflect the targeted and proportionate regulatory regime that everyone wants, and which the Minister spoke of in this context. Codes should promote good practice among those providing pensions; hence the requirement that, attached to any code, there should be an analysis of the costs and benefits of the regulator's guidance.
 In theory—but not, one hopes, in practice—the regulator could use the codes of practice in a way that would both impose large cost burdens on those providing pensions and deliver minimal or nil benefit, in terms of information and security, for the members of those pension schemes. It is worth bearing in mind the principle of proportionality, which is one of the Better Regulation Task Force's five principles of good regulation. 
 It is interesting to note that under the relevant legislation, the Financial Services Authority is required to undertake and publish cost-benefit analyses of proposed rules and guidance. I can think of no good reason why the same rules should not apply to the new regulator—and if my luck holds, perhaps the Minister will agree. 
 On a more general point, it is important that any powers or functions with which we endow the regulator have the full support and consent of the industry. It is important that the industry does not feel at all threatened by any potential extra costs attached to any such codes of practice. It is important that we demonstrate to the industry, through this and possibly later amendments, that the regulator will not only look carefully at the need to root out problems in pension schemes, but will ensure that there is not a mass of unnecessary regulation in the codes of practice, providing little benefit and putting extra burdens on business.

Malcolm Wicks: Before I speak to the amendments, I shall briefly explain the purpose of the clause, so that we are all clear about its effect. The clause gives the regulator a new power to enable it to issue codes of practice. The codes will contain practical guidance about the way in which the regulator will exercise its
 functions under the pensions legislation. They will also contain guidance about the standards of conduct and practice that the regulator will expect of people involved with pension schemes—for example, scheme trustees or members.
 One purpose of enabling the regulator to issue codes of practice is so that we can move away from a one-size-fits-all approach to compliance with legislation. For example, last Thursday, the Committee discussed the whistleblowing duties imposed in clause 45, and the hon. Member for Tatton raised concerns about the use of the words ''material significance''. He will note that clause 64(2)(c) requires the regulator to issue a code of practice on the duties imposed by clause 45. That code will set out how the regulator interprets ''material significance'' and explain the type of breach that should be reported. 
 Also, the best route to compliance with the law may vary according to, for example, the size and member profile of the scheme. A code of practice approach will allow flexibility in that regard. That will ensure both that the regulator can operate in an efficient and targeted fashion and that trustees and managers are clear about what the regulator and the law expect of them. 
 Codes of practice will augment the proportionate and targeted regulatory approach. They are also a direct response to the recommendations of Alan Pickering's report, which said that a new kind of regulator should 
''sponsor and monitor the operation of Codes of Practice . . . However, care must be taken to avoid . . . Codes that are even more prescriptive and potentially inhibiting than the statutory regulations that we are trying to avoid.''
 The production and publication of certain codes will be mandatory—those are outlined in subsection (2). Other codes may be issued at the discretion of the regulator; those, too, must be published. In addition to publishing codes, the regulator will be able to revise all or part of any code—or, indeed, to ask the Secretary of State to revoke it. We will address the detailed procedures for the production, publication, revision and revocation of codes when we debate clauses 65 and 66, but it is worth anticipating them a little here by saying that the processes that we propose will be subject both to advance consultation and to parliamentary scrutiny. 
 Through codes of practice, the regulator will be able to provide clear guidance on its interpretation of pensions law, so that those involved in work-based pension schemes will better understand what the regulator expects them to do. Any failure to comply with a code of practice does not, in itself, mean that a person has failed to comply with the law. As I have explained, codes of practice will set out the regulator's interpretation of certain parts of the pensions legislation. The second part of subsection (5) allows the regulator to say, ''You haven't complied with the law. Here is a code of practice that tells you how to comply; please go away and follow it.'' It simply means that if a person has failed to comply with any provision about which the regulator has issued a code 
 of practice, the regulator may refer to that code when asking the person to take the action necessary to achieve compliance. It does not mean that the codes of practice can effectively become law through the back door. 
 An improvement notice may be issued only if the regulator is of the opinion that a breach has occurred. It may refer a person to the relevant code of practice. If at the end of the process the person complies with the law—even if that person still has not followed the code of practice to the letter—the important thing, which is the compliance with the law, has happened; therefore, end of story, and end of regulatory intervention. On the other hand, issuing an improvement notice and referring to a code of practice will enable any person to find an easy route to compliance. The message is simple: ''Follow the directions of the code of practice and you will be okay.'' 
 These amendments would require the regulator to publish an analysis of the costs and benefits of any code when publishing either a draft or a final code of practice. One of the purposes of the code of practice system is to augment the flexible, proportionate and targeted regulatory approach. The system is designed to help minimise the costs of compliance with the law for all types of scheme. What may be right for some types of scheme may not accord with what is right for others, even where the legal requirements are the same for both. 
 Let us take the code of practice on trustees' knowledge and understanding as an example. Trustees are required to have an understanding of investment matters. However, the knowledge required for a defined benefit scheme would be different from that required for a defined contribution scheme. In addition, a trustee who performs a more specialist function, such as sitting on an investment sub-committee, should have a deeper understanding. The code of practice may reflect those distinctions. 
 I should say that whether that particular code is indeed framed in that way will be a matter, in the first instance, for the regulator. I use it merely to illustrate a point, which is that the flexibility that the code of practice system allows is designed precisely to help minimise the costs of compliance on all types of schemes. Failure to comply with a code does not automatically mean that a person has failed to comply with the law. If a scheme finds a more cost-effective way of complying with the law than a code suggests, it may use it, as long as it ultimately complies with the legal requirements and—if challenged—is able to show that it has done so. Also, the consultation requirements when drafting a code will give those involved the opportunity to consider any related costs. The regulator's responsibility would be to consider those views and balance them against its aim of providing protection for members. 
 Codes of practice allow a flexible, proportionate and targeted regulatory approach. They provide practical guidance on how to comply with the law and yet allow different schemes to take a different 
 approach, should that be more appropriate to their circumstances. I believe that the concerns that the hon. Member for Eastbourne raises by way of his probing amendments are properly accounted for in the Bill as drafted and I therefore ask him to withdraw them.

Nigel Waterson: If I thought that they were properly accounted for in the Bill I would not have tabled the amendments. I am puzzled. The Minister might be able to help me on this and he should feel free to intervene at any moment if he thinks that he can short-circuit matters. As I understand it, he accepts that codes of practice should reflect the principles of flexibility and proportionality in the way that they are drafted. He also accepted that as part of the consultation process it would be open to outside bodies, such as the ABI, to make representations about the likely costs and burdens of such a code of practice; indeed, it would be open to the regulator, the Secretary of State or to both to take account of representations.
 In that case, I do not understand why it is not possible to insert the missing link and say that when the code of practice is first issued in draft for consultation, it should contain, attached to it, a cost-benefit analysis. After all, a regulatory impact assessment is attached to the Bill, which in many ways is more informative than the explanatory notes. Such a measure seems to be something that serious industry bodies would welcome. It goes deeper than that, because before the codes go out to consultation it is necessary for the people who are preparing them to establish in their own minds how burdensome the codes will be and what the balance is between the cost and the benefit that they are seeking to achieve. 
 I am not at all happy with the Minister's explanation of why it is not possible to include that measure. It is quite worrying—and I would be quite worried if I was in the ABI'S position—that the Minister cannot accept the amendment. I give notice that we may return to the issue on Report, but I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendments made: No. 43, in 
clause 64, page 41, line 19, after 'Ombudsman' insert 
 ', proceedings of the Ombudsman for the Board of the Pension Protection Fund and proceedings of the Board of the Pension Protection Fund under section 168 or 169'.
 No. 44, in 
clause 64, page 41, line 24, leave out ', and section 33,'.
 No. 45, in 
clause 64, page 41, line 26, after 'Part 1' insert 'or section 33'.—[Malcolm Wicks.]
 Clause 64, as amended, ordered to stand part of the Bill.

Clause 65 - Procedure for issue and publication of

Nigel Waterson: I beg to move amendment No. 248, in
clause 65, page 41, line 34, after 'appropriate' insert 
 'including representatives of the pensions industry, of occupational pension schemes, trade unions and sponsoring employers.'.

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 254, in 
clause 65, page 41, line 34, leave out ', and'.
 Amendment No. 249, in 
clause 65, page 41, line 35, leave out paragraph (b).
 Amendment No. 236, in 
clause 65, page 41, line 35, at end insert 
 'and— 
 (c) in such a manner that provides a minimum period of 12 weeks for the submission of responses.'.

Nigel Waterson: Again, the amendments are designed to focus on the consultation process and how it will work. Some of them are home grown and one is inspired by the ABI. Amendments Nos. 248, 249 and 254 are designed to expand and make more specific the provisions regarding who the regulator is supposed to consult when it produces a draft code of practice. Clause 65(2) requires it to consult
''(a) such persons as it considers appropriate, and
(b) any other persons the Secretary of State requires it to consult.''
 I have said my piece in the past and I will not repeat our suspicions about the Secretary of State's role—let alone that of the Treasury—in the legislation. Leaving that aside for a moment, it seems appropriate to us to spell out that as well as those persons ''it considers appropriate'', the consultation should include representatives of the pensions industry, occupational pension schemes, trade unions and sponsoring employers. It is difficult to see how the Minister could object to the amendment. There is that old argument, which one always comes across, about how much should be included in the Bill and what should not be included. No doubt the Minister will inform us that the regulator would, in any event, consult the relevant groups, and possibly other groups. That is all fine and dandy. However, I would prefer to see it spelled out in the Bill. 
 Amendment No. 236, which is inspired by the ABI, has slightly more meat on it and is to do with the consultation period. The Government have been accused in the past of going into a ''carry on consulting'' mode. The duration of some of their consultations on different issues has been quite short. Indeed, sometimes consultations have taken place during the holiday period. It makes sense to ensure that there is a minimum period. We would like there to be a minimum period of 12 weeks for the submission of responses—that seems fair. It is the best part of three months. However, I am not prepared to go to the stake over that. If the Minister accepts the principle and wants to think of a different period to insert, that would be fine, too. 
 Incidentally, the amendment would also enshrine criterion No. 1 of the Cabinet Office's code of practice on consultation. One wonders how often that is observed in the consultations undertaken by other Departments. That criterion says: 
''Consult widely throughout the process, allowing a minimum of 12 weeks for written consultation at least once during the development of the policy.''
 The amendment would replicate the practice of the Financial Services Authority, which seeks to provide at least 12 weeks for consultation. I failed to mention in the previous debate that the Government have also compelled themselves by legislation to publish cost-benefit analyses. 
 It is sensible, as the ABI suggests, for there to be a minimum period for consultation. In some cases there might be a longer period due to the complexity involved. Nevertheless, the basic point is that it is in the interests of the regulator and the Government to ensure that all those who have something to contribute should have the fullest possible say on these draft codes. It is sensible and reasonable for there to be a 12-week period. It is difficult to think of any code of practice that would need to be introduced so urgently that that kind of period for consultation would not be allowed. Assuming that the regulator and the Secretary of State will be open to sensible comments and suggestions, one hopes that each code would be improved as a result of this process. 
 To put it bluntly, I cannot think of any reasonable objection to the amendment. I hope that the Minister, who has already shown his broad-mindedness once this morning, will accept it without further ado.

Malcolm Wicks: I should like to explain briefly the effect of the clause before speaking to each hon. Member's amendment. Committee members will have noted that the clause ensures that there is proper parliamentary scrutiny over any codes of practice issued by the regulator under clause 64. It provides that there must be proper consultation and publication of draft codes. I shall return to that in a moment. When any comments have been considered, the code must be sent to the Secretary of State, who, if he approves it, must lay it before Parliament for the recommended period of 40 days, not including periods when the House is not sitting. Unless by resolution of either House Parliament objects, the Secretary of State can appoint by order a day on which the code can come into force.
 Amendment No. 248 would require the regulator to consult representatives of the pensions industry, occupational pension schemes, trade unions and sponsoring employers when publishing a draft code of practice. Although the clause does not stipulate it, the groups mentioned in the amendment are precisely those that I suspect that the regulator will consult. One reason why that is not stipulated is that it may not be proper in every case for the regulator to consult all those groups. For example, it may not be appropriate to consult employers' groups on trustees' duties to report late payments by employers. The legislation on that matter is clear. Currently, all such payments must be paid by the 19th day of the month following the month in which the payments fall due. A further reason is that although these are the types of group that the regulator will consult, there are others, such as the representatives of actuaries and auditors, who may also be consulted. The legislation cannot be exhaustive; to mention some groups and not others 
 would suggest that the former had undue prominence or authority, which might not be the case. 
 Amendment No. 236 would require the consultation period for each draft code to be a minimum of 12 weeks. Although I understand that that suggestion might appear reasonable at first blush, it may in fact place an unnecessary constraint on the regulator in particular, urgent situations. In discussing clause 64, I mentioned a possible scenario in which the tribunal's determination might result in the regulator deciding that a code of practice should urgently be replaced. In those circumstances, a three-month minimum consultation period might not be appropriate and might put members' benefits at risk as a result of trustees' and managers' uncertainty about what would be expected of them in the interim. 
 I should point out that I do not anticipate that such circumstances will arise. However, as my colleague and I have said, our purpose in designing the legislative framework for the regulator is to balance certainty against flexibility and adaptability. No Committee member wants to create another situation in which legislation places unnecessary restrictions on the regulator and prevents it from properly doing its job, which is to protect members' benefits. The system of codes of practice provides the necessary clarity and certainty for the regulator community and gives sufficient flexibility to ensure that the regulator may take action to protect members, even if circumstances arise in future that none of us is able to foresee. 
 Amendments Nos. 249 and 254 would remove the Secretary of State's ability to require the regulator to consult any additional persons. Again, the provision is about balance. I do not expect the regulator not to consult the groups appropriate to each particular code. However, if such a situation were to arise, the subsection would merely provide an easy mechanism to remedy it. 
 As I have explained, each code of practice is subject to parliamentary scrutiny. If any hon. Member considered that the regulator had not consulted appropriately during the drafting process or that the Secretary of State had made an inappropriate direction about who should be consulted, they would have the opportunity to do something about it. I suggest that hon. Members wait for those unlikely circumstances to arise rather than restrict the flexible approach that we propose at this stage. 
 As drafted, the clause provides the procedure for the issue and publication of codes of practice with the necessary and appropriate levels of scrutiny, flexibility and openness. The regulator must publish the code as it considers appropriate. Amendment No. 250 would remove the subsection allowing the regulator to publish any code in a way appearing to it to be appropriate. Enabling that flexibility allows for publication by either—or both—paper and electronic means.

Nigel Waterson: I think that the Minister is getting ahead of himself. I have not moved that amendment yet.

Malcolm Wicks: No; what was on the hon. Gentleman's mind in relation to that amendment was obviously communicated to me by some strange mechanism. I am sorry to have anticipated him. Perhaps I was wrong in thinking that it might be helpful to anticipate. It is probably best for me to ask the hon. Gentleman to withdraw his amendments and sit down.

Nigel Waterson: I suppose that if we continued like that, there would be no need for me to say anything at all; the Minister could conduct both sides of the debate. Who knows? That might even be a step in the right direction. As long as it was not the Minister with the pillow over his face, we might all be a lot better off.
 I do not think that the amendments can be criticised at all on grounds of practicality. The Minister seems to accept the fundamental principles behind them, although perhaps he would like to tinker with the list of consultees. The industry will be puzzled about why the principles at least could not be accepted. However, I do not want to detain the Committee. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn.

Nigel Waterson: I beg to move amendment No. 250, in
clause 65, page 42, line 23, leave out paragraph (10).

Win Griffiths: With this it will be convenient to discuss amendment No. 252, in
clause 68, page 43, line 31, leave out subsection (2).

Nigel Waterson: The Minister is like a coiled spring, waiting to leap on my arguments about the amendments and hack them to pieces. However, if he can contain himself, I shall explain my intentions, which, hopefully, approximate to the intentions set out in his speaking notes. Clause 65(10) and clause 68(2) have almost the same wording. It is curious that, having gone to all the trouble to arrange for the regulator to publish draft codes of practice or draft statements of procedure, both of which are important for a range of organisations, the clause says in a limp way that it is up to the regulator to publish a code
''appearing to it to be appropriate.''
 What is behind that? 
 There is only a limited number of ways of publishing codes. The regulator may stick them on the website. It is bound to have a website; everyone does these days. I do, and I am sure that the Minister does, too. I hope that hard copies will be available for old-fashioned people who like the feel of paper. What possible range of options can the regulator be looking at when deciding how to publish the draft codes or the draft statements of procedure? I hope that the Minister will enlighten me.

Malcolm Wicks: I listened carefully to the hon. Gentleman. It might be useful to repeat what I said earlier about enabling flexibility—the corner-stone of our approach—that allows for publication by either or both paper and electronic means. If members of the
 Committee want an idea of what that looks like, we have left on the Table copies of the OPRA document on guidance for scheme auditors and scheme actuaries. That will reassure the hon. Gentleman that the draft codes and statements will be available in a printed format.
 The clause allows that a code that relates to duties of, for example, actuaries may also be sent to the appropriate professional organisations for onward distribution to their members. Clearly, we would not go to the trouble of specifying the need for codes without ensuring that they were published and distributed properly. As members of the Committee will appreciate, it makes no sense for any code to be published in such a way that those to whom it is directed are unaware of its provisions. That would not suit us, the regulator or the regulated community, and neither would it be in the interests of those whom ultimately we want to help. Given those reassurances, I hope that the hon. Gentleman will withdraw the amendment.

Nigel Waterson: On the basis of the Minister's reassurances, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 65 ordered to stand part of the Bill.

Clause 66 - Revocation of codes of practice

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: The clause was bound to provoke me because it deals with the Secretary of State interfering again in the regulator's business. I cannot begin to understand why the Secretary of State should have a power to revoke a code of practice. I accept that the regulator should have the power to revoke one of its codes of practice, but it is a little wishy-washy to refer to the revocation being made with the consent of the regulator.
 The philosophical difference between the two sides has surfaced before. The Government are setting up a gleaming, shining new regulator with new powers and functions and a probably much-enhanced staff and budget. The Conservatives believe that we should let it get on with it. Having set it up and given it the best possible start in life, the Secretary of State should not start micro-managing such matters. It mystifies me why the Secretary of State should have a view on a code of practice, other than that of any essential consultee, as Secretaries of State have better things to do. The clause should be removed altogether and it should be made clear that the regulator can revoke its code of practice. The Minister mentioned a possible scenario—it is difficult to credit—that something might need to be done in an emergency. It is the regulator, which should know its own business, not a politician, that should be in charge of this sort of issue.

Win Griffiths: I call Mr. Nigel Waterson—I am sorry, I meant Mr. Malcolm Wicks.

Malcolm Wicks: We agree sometimes, Mr. Griffiths. Clauses 64 and 65 place a duty on the regulator to
 issue the codes of practice and to consult. The Secretary of State must lay codes of practice before Parliament as they will be commenced by order of the Secretary of State. Clause 66 permits that Minister to revoke codes, also by order. Opposition Members expressed their concern that that gives too much power to the Secretary of State, and I hope I can reassure them that that is not the case. The procedure is designed to enable a flexible approach to legislation; it was one of the underlying purposes of allowing the regulator to issue codes of practice in the first place.
 However, such an approach must still have appropriate parliamentary scrutiny, which is why codes can be stopped by resolution of either House. As codes are commenced by order, they must also be revoked by order and the procedure ensures that there will be no confusion about whether codes of practice or any particular version of a code are current. An order to revoke a code may not be made without the regulator's consent, as the hon. Gentleman acknowledged. That is what subsection (2) is about. 
 The measure will ensure that we strike precisely the right balance between the regulator staying at arm's length from Government and retaining sufficient parliamentary accountability for its actions. It should also allay any Opposition concerns about the Government's ability to interfere in the regulator's activities. I hope that that reassures the hon. Gentleman.

Nigel Waterson: I am not reassured, but as we want to make progress I am happy to move on.
 Question put and agreed to. 
 Clause 66 ordered to stand part of the Bill.

Clause 67 - The Regulator's procedure in relation to its regulatory functions

Amendment made: No. 46, in 
clause 67, page 43, line 4, after 'power' insert 'by direction'.—[Malcolm Wicks.]
 Clause 67, as amended, ordered to stand part of the Bill. 
 Clauses 68 and 69 ordered to stand part of the Bill.

Clause 70 - Standard Procedure

Chris Pond: I beg to move amendment No. 198, in
clause 70, page 44, line 39, leave out 'was' and insert 'is'.

Win Griffiths: With this it will be convenient to discuss Government amendments Nos. 47, 48, 50, 55 to 57, 60 and 61.

Chris Pond: The clauses we have just agreed to set out the standard and special procedures that the regulator will use. The purpose of specifying the different procedures is to ensure that the regulator's powers, which are varied, are nevertheless used proportionately and fairly, and that they comply with the requirements of the Human Rights Act.
 Clause 70 relates to the standard procedure, which is fairly straightforward. Since we have not yet discussed either the standard or the special procedure before discussing the Government amendments, I shall explain the standard procedure. If the regulator has a case in which there is no immediate risk to scheme assets or members' benefits, and the regulator intends to exercise one of its regulatory functions, it must tell those likely to be directly affected by the regulatory action. Those affected will vary, depending on the action. They will be invited to make representations about the proposed action. The regulator will consider those representations and tell the individuals concerned what it has decided to do through the issue of a determination notice, which will be published probably electronically under clause 63 so that it will be available to any interested parties. 
 The regulator cannot take the action, however, until after the period for making a reference to the tribunal has expired, except in certain cases detailed in subsection 5. There are many Government amendments to the clause, which are largely technical, and correct drafting errors and ensure that the references to the Pensions Act 1995 are correct. 
 Amendment agreed to. 
 Amendments made: No. 47, in 
clause 70, page 45, line 6, leave out '3' and insert '3(1)'.
 No. 48, in 
clause 70, page 45, line 10, leave out '4' and insert '4(1)'.
 No. 49, in 
clause 70, page 45, line 11, at end insert— 
 '( ) the power to make an order under section 4(2) of that Act extending the period for which an order under section 4(1) of that Act has effect;'.
 No. 50, in 
clause 70, page 45, line 12, leave out 'such an order' and insert 
 'an order under section 4(1) of that Act suspending a trustee'.
 No. 51, in 
clause 70, page 45, line 15, at end insert— 
 '( ) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;'.
 No. 52, in 
clause 70, page 45, line 17, at end insert— 
 '( ) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the trustees where a trustee becomes disqualified under section 29 of that Act;'.
 No. 53, in 
clause 70, page 45, line 20, after 'power', insert 'by direction'.
 No. 54, in 
clause 70, page 45, line 23, after 'power', insert 'by direction'.
 No. 55, in 
clause 70, page 45, line 28, leave out 
 '(a) to (c), (e) and (g) to (l)' 
 and insert 
 '(a) to (l) other than those mentioned in paragraph (d) or (f)'.—[Mr. Pond.]
 Clause 70, as amended, ordered to stand part of the Bill.

Clause 71 - Special procedure: applicable cases

Chris Pond: I beg to move amendment No. 199, in
clause 71, page 45, line 32, leave out 'and'.

Win Griffiths: With this it will be convenient to discuss Government amendments Nos. 200 to 203.

Chris Pond: These are technical amendments concerned with the special procedures of the regulator that give him the ability to act straight away when there is an immediate risk to members' interests or scheme assets. Unless anyone would like further explanation, I commend them to the Committee.
 Amendment agreed to. 
 Amendments made: No. 200, in 
clause 71, page 45, line 33, at end insert 
 ', and 
 ( ) a case falling within subsection (3A)'.
 No. 201, in 
clause 71, page 46, line 15, at end insert— 
 '(3A) A case falls within this subsection if the Regulator— 
 (a) gives a warning notice as described in section 70(2)(a) in relation to a determination whether to exercise a regulatory function which— 
 (i) is listed in subsection (4), and 
 (ii) is not a function listed in section 70(5) (functions which may be exercised immediately under the standard procedure), 
 (b) considers the representations of those persons to whom the warning notice is given, and 
 (c) determines to exercise the function immediately on the basis that it is necessary to do so because there is, or the Regulator considers it likely that if the function were not exercised immediately there would be, an immediate risk to— 
 (i) the interests of members under an occupational or personal pension scheme, or 
 (ii) the assets of such a scheme.'. 
No. 202, in 
clause 71, page 46, line 16, leave out 'and (3)' and insert ', (3) and (3A)'.
 No. 56, in 
clause 71, page 46, line 30, leave out '3' and insert '3(1)'.
 No. 57, in 
clause 71, page 46, line 34, leave out '4' and insert '4(1)'.
 No. 58, in 
clause 71, page 46, line 39, at end insert— 
 '( ) the power under section 9 of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, trustees in consequence of the appointment or removal of a trustee;'.
 No. 59, in 
clause 71, page 46, line 43, at end insert— 
 '( ) the power under section 30(2) of that Act to exercise by order the same jurisdiction and powers as the High Court or the Court of Session for vesting property in, or transferring property to, the 
trustees where a trustee becomes disqualified under section 29 of that Act;'.
 No. 60, in 
clause 71, page 46, line 45, leave out 
 ', notice or direction made, issued' 
 and insert 'or notice made'.
 No. 61, in 
clause 71, page 46, line 47, leave out 
 '(a) to (h), (j), or (l) to (o)' 
 and insert 
 '(a) to (o) other than those mentioned in paragraph (i) or (k)'.—[Malcolm Wicks.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Nigel Waterson: My questions for the Under-Secretary boil down to this: how special is the special procedure? It is clear from the guts of the clause—subsection (2)—that the regulator has to be satisfied that it is necessary to exercise the functions listed immediately if he
''considers it likely that if a warning notice were to be given there would be, an immediate risk to . . . the interests of members . . . or . . . the assets of . . . a scheme''.
 Will the Under-Secretary say—so far as he can, given how distant the operation of the clause is—how the clause would operate in practice? How rare would use of the special procedure be? Could he say a little more about what kind of situations he had in mind when drafting the clause?

Steve Webb: I shall pick up on the hon. Gentleman's comments. The Under-Secretary has helpfully supplied members of the Committee with a briefing note on general and special procedures. It flags up the fact that the procedures are quite a drastic step. The note says that actions taken under the clause may temporarily, but seriously, impinge on the human rights of any affected person. The note goes on to state that that can be justified when balanced against the risk to members' interests, but that the line needs to be trodden carefully. As the hon. Member for Eastbourne said, it would be helpful if the Committee could be told how often such a procedure might be required. Is there a parallel in the existing regulatory framework? If not, how new is this? For how long might the provisions apply in any particular case?

Nigel Waterson: On a point of order, Mr. Griffiths. This might seem churlish, and it may be the fault of my office, but I did not have the benefit of that briefing note—just as the hon. Gentleman did not have the benefit of an invitation to the Programming Sub-Committee. I do not know how the note was supposed to get to me; I am sure that my life will go on much as before without reading it, but it would be nice if I could be given another copy if I have lost the first one—or if it has been eaten by my dog.

Win Griffiths: That was not a point of order, but we have heard it now.

Chris Pond: I apologise to the hon. Member for Eastbourne if he did not receive that briefing note. We will make sure that he receives a copy as soon as
 possible. However, it is probable that life will continue much as before, with or without it.
 Three types of situation are provided for under this part of the Bill. The first situation is where there is an immediate risk; I think that the Committee accepts that in those circumstances the determinations panel must act immediately in order to protect members' interests. The second situation is when the regulator has given a warning notice but, before considering representations, decides that there is an immediate risk—in other words, new information becomes available. The third situation is where the regulator issues a warning notice, considers a representation, and decides to act immediately. 
 As the hon. Member for Northavon said, the first two types of situation are obvious—when the regulator receives information and must act immediately, or when the regulator has sent a warning notice but receives information while waiting for a response that makes it reassess the situation and determine there is an immediate risk. The third situation is provided for by Government amendments Nos. 199 to 202. We have considered them, but they may need a little further explanation. 
 Let us suppose that the regulator has received an application from the members to appoint a trustee because they believe that the current trustee is too closely connected to the employer, but there is no evidence of behaviour likely to put the scheme assets or members' benefits at risk. The regulator will then follow the standard procedure and issue warning notices giving the parties a time within which to respond—let us say 14 days. If on day two the regulator received a fax from a member-nominated trustee saying that he had just heard that the managing director—who was also a trustee—had asked the bank to transfer a large sum of money out of the pension scheme urgently, the regulator would have to act that day. The regulator could not wait until the expiration of 14 days, when all responses will be received, before taking action. The functions that the regulator can exercise immediately are detailed in clause 71, and I am sure the Committee agrees that it may be necessary for it to exercise them immediately, to protect members' interests. 
 I can confirm that any regulatory functions prescribed under clause 4(1) must be prescribed by the Secretary of State and will be subject to the normal parliamentary procedures.

Steve Webb: Liberal Democrat and Conservative Members were trying to get a feel for the frequency with which the powers might be used—although I appreciate that any estimate will be somewhat speculative—and also whether they are new powers, or whether they mirror anything in existing legislation.

Chris Pond: I apologise, Mr. Griffiths; the hon. Gentleman raised those questions and I should have responded to them. There is nothing new in this, but we are setting it out in legislation. OPRA's emergency procedures are already set out, and they are reflected in the Bill. We do not expect there to be a significant number of cases; there are an average of 10 emergency cases per year, according to OPRA's experience.
 I hope that the Committee will accept those reassurances. 
 Question put and agreed to. 
 Clause 71, as amended, ordered to stand part of the Bill. 
 Clause 72 ordered to stand part of the Bill.

Clause 73 - Special procedure

Nigel Waterson: I beg to move amendment No. 253, in
clause 73, page 47, line 27, leave out 
 'as soon as reasonably practicable' 
 and insert 'within seven days'.
 In useful exchanges on previous clauses, we established that the special procedure will be used sparingly—30 cases a year was cited by OPRA. In any event, I think that we can agree that it will not happen often; but when it does, it will have significant consequences. The Minister graphically described the obvious example—one that is not unfamiliar—of large sums of money being transferred out of a pension fund and the need for rapid action. In any event, the special procedure will be applied only in serious situations. It is therefore even more important that the compulsory review set out in clause 73 should happen quickly, as events may move fast. 
 We are talking about the special procedure, but the use of words like ''immediate'' and phrases such as ''immediate risk'' and ''warning notice'' may warn the villains that the regulator is on to them. Subsection (2) uses the phrase 
''as soon as reasonably practical''.
 That seems a bit feeble, which is why I propose instead the phrase ''within seven days''. Given the seriousness and urgency inherent in such situations, it is only right that all other issues be put to one side while they are dealt with urgently. Seven days seems appropriate in the circumstances.

Chris Pond: We have already discussed the standard and special procedures. One of the vital safeguards for those directly affected by a function exercised under the special procedure is the compulsory review, and it is the review to which amendment No. 253 relates. As the hon. Gentleman explained, a compulsory review must be held
''as soon as reasonably practicable''.
 The amendment seeks to change that to ''within seven days''. 
 We have already discussed the meaning of the phrase that the amendment seeks to omit; I have explained that it means exactly what it says. The purpose of the compulsory review is to allow those directly affected to make representations. If there is insufficient time for them to do so, the review will have little purpose. Allowing the review to take place as soon as reasonably practicable will ensure that a 
 balance can be struck between reviewing the decision as soon as possible and allowing directly affected parties sufficient time to make representations. 
 If the amendment were to be accepted, it would mean that those who wanted to take legal advice, or who wanted to obtain evidence to present to the compulsory review, would have less than seven days to so. In practice, they would be prevented from making full representations to the review. 
 I hope that the hon. Gentleman recognises that we share his objective—that the procedure should be brought into effect as speedily as possible—but that we need flexibility in order to ensure that all parties have an opportunity to use the protection built into the provision. I therefore ask him to withdraw the amendment.

Nigel Waterson: I am happy to accept the Minister's explanation. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Nigel Waterson: I beg to move amendment No. 237, in
clause 73, page 47, line 32, leave out paragraph (c).

Win Griffiths: With this it will be convenient to discuss the following:
 Amendment No. 242, in 
clause 77, page 50, line 12, leave out paragraph (c).

Nigel Waterson: The amendments would remove similar wording from clauses 73 and 77. It is a short and important point, but I hope that it is obvious. I can see the point of confirming, varying or revoking a determination. However, clause 73(3)(c) and clause 77(6)(c) would allow the substitution of a different determination or order. The cleanest and most appropriate thing to do would be to go back to the start and, ab initio, have a new application and reference and start from scratch, rather than substituting. To substitute a different determination would be a wide-ranging power. It is not appropriate to do that in what amounts to a review or appeal procedure.

Chris Pond: As we are now clear, the determinations panel has a number of powers available to it at compulsory review stage. It may confirm, vary or revoke any decision, substitute a different decision, or deal with matters arising from the review as if those had arisen on the original determination.
 Amendment No. 237 would remove the provision that on a review the determinations panel may substitute a different determination order, notice or direction. Amendment No. 242 would remove the provision that the tribunal can direct the regulator to substitute a different determination order, notice or direction. This provision will allow a different decision to be substituted when representations have been received, such as when a trustee is to be appointed, rather than a freezing order being imposed. However, safeguards are provided. Subsection (5) provides that should the decision of the review be to exercise a different regulatory function, that function cannot have immediate effect unless notice has been given to 
 directly affected parties and representations have been considered, or, under subsection (6), it is a function that can be exercised by special procedure and is necessary because there is an immediate risk to scheme members' benefits or assets. Previous Government amendments have added to these safeguards. 
 I hope that with that reassurance the hon. Gentleman feels able to withdraw his amendment.

Nigel Waterson: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 203, in 
clause 73, page 48, line 14, at end insert— 
 '(7A) Where that determination is a determination to exercise a different regulatory function to the function which was the subject-matter of the determination notice, the Regulator must not exercise the regulatory function— 
 (a) during the period within which the determination may be referred to the Tribunal (see section 77(1)), and 
 (b) if the determination is so referred, until the reference, and any appeal against the Tribunal's determination, has been finally disposed of. 
 (7B) Subsection (7A) does not apply where— 
 (a) the regulatory function in question is a function listed in section 70(5) (functions which may be exercised immediately under the standard procedure), or 
 (b) the regulatory function in question is a function listed in section 71(4) (functions which may be exercised immediately under the special procedure) and the Regulator determines to exercise it immediately on the basis described in subsection (6).'.—[Mr. Pond.] 
Clause 73, as amended, ordered to stand part of the Bill.

Clause 74 - Duty to have regard to the interests

Nigel Waterson: I beg to move amendment No. 239, in
clause 74, page 48, line 35, at end insert 
 'including sponsoring employers of any such schemes.'.
 The amendment would tighten up the wording of clause 74(2) to make it clear that among the persons whose interests the regulator needs to consider in such circumstances are the sponsoring employers of any such schemes. That is a blindingly obvious statement. I have no doubt that the Government wish to accept the amendment.

Chris Pond: The hon. Gentleman is right to raise that query. I reassure him that a sponsoring employer will be covered by these provisions. The clause requires the regulator, when it is deciding to exercise its regulatory functions, including their review, to take into account the interests of the generality of scheme members who will be affected by its actions, and the interests of other persons whom it considers will be directly affected. It ensures that the regulator acts fairly and proportionately when exercising its regulatory functions.
 The amendment would add an automatic duty to consider the interests of employers. I assure the hon. Gentleman that if a sponsoring employer were directly 
 affected, the clause would provide that its interests would be considered. However, the employer is not always directly affected. Indeed, the decision about who was directly affected would depend on the circumstances. If the regulator is appointing an additional trustee and the fees are to be paid by the employer, the employer would be directly affected and its interests would be considered. Similarly, if the regulator determines to freeze or wind up a scheme, the employer would be directly affected and its interests would be considered. 
 However, if the regulator imposes a penalty on the trustees, the employer may not be directly affected by the decision. The hon. Gentleman should note that even if the determinations panel does not deem an employer to be directly affected, the employer may appeal to the pensions regulator tribunal to be a directly affected party under clause 70(3) if the employer wishes to make a reference. 
 I ask the hon. Gentleman to withdraw the amendment in the light of that reassurance.

Nigel Waterson: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 74 ordered to stand part of the Bill.

Clause 75 - Powers to vary or revoke orders, notices or directions etc

Chris Pond: I beg to move amendment No. 62, in
clause 75, page 48, line 44, leave out 'or'.

Win Griffiths: With this it will be convenient to discuss Government amendment No. 63.

Chris Pond: Subject to specified exceptions, clause 75 gives the regulator the power to vary or revoke any determination notice, direction or order that it issues in exercising its regulatory functions. Any variation or revocation cannot take effect before the date on which the variation or revocation is made. Those specified exceptions include an order to revoke a prohibition order or suspension order. Amendments Nos. 62 and 63 add the decision to refuse to register a pension scheme as a stakeholder pension scheme or to remove it from that register.
 The reason for those exceptions is that there is a simpler method of achieving the same result. For example, the provider can reapply to be added to the stakeholder register—attaching the relevant evidence—and the regulator may subsequently determine that the scheme should be so registered. There is thus no need to revoke or amend the original order. 
 Amendment agreed to. 
 Amendment made: No. 63, in 
clause 75, page 49, line 2, at end insert 
 ', or 
 ( ) a direction under section 2(3) of the Welfare Reform and Pensions Act 1999 (c.30) refusing to register a scheme under section 2 of that Act or removing a scheme from the register of stakeholder pension schemes.'.—[Mr. Pond.]
 Clause 75, as amended, ordered to stand part of the Bill.

Clause 76 - The Pensions Regulator Tribunal

Nigel Waterson: I beg to move amendment No. 240, in
clause 76, page 49, line 19, leave out subsection (3).

Win Griffiths: With this it will be convenient to discuss amendment No. 241, in
clause 76, page 49, line 24, leave out subsection (5).

Nigel Waterson: If I may, I will go slightly beyond the narrow ambit of the amendments, on the basis that it may obviate the need for a stand part debate.
 I put my cards on the table: we believe that there is no need for a pensions regulator tribunal. We have made the point more than once that a vast bureaucracy is being created; there will be a regulator, an ombudsman, the determinations panel—that will probably bring the hon. Member for Northavon to his feet and bring back happy memories of previous debates—and now a pensions regulator tribunal. In the significant or serious cases in which further legal challenge is appropriate, a simple reference to the High Court would probably do the trick, rather than having yet another organisation, with all its cost implications, such as staffing and so on, building up a body of precedent and procedure. 
 However, as it appears that we are stuck with the proposal, at least for the moment, the amendments are designed to clarify how the rules on its parliamentary proceedings are to be made. I do not see why the Lord Chancellor, or whatever he is called nowadays, should be involved. An expanded version of schedule 4 could set out all the relevant procedure; assuming that we accept schedule 4, I do not understand why subsection (5) should go out of its way to provide that it does not have any effect on the Lord Chancellor's powers under this clause. 
 If we are to have the new body—I do not think that we should—it should be clear from the outset what it will do and how it will do it and the Lord Chancellor should not get involved.

Malcolm Wicks: I was slightly surprised by the hon. Gentleman's approach. The concept of a tribunal is fairly well established and I will argue for it. Clause 76 provides for the establishment of the new pensions regulator tribunal. The amendments seek to remove the provisions that allow the Lord Chancellor to make rules about its proceedings. I can assure the hon. Gentleman that the Lord Chancellor still exists; I saw him the other day.
 Hon. Members will no doubt remember Sir Andrew Leggatt's report, ''Tribunals for Users—One System, One Service''. My hon. Friend the Member for Greenock and Inverclyde (David Cairns) is an authority on it. He may or may not want to speak about it later—probably not. It recommended a unified tribunal system under the Department for Constitutional Affairs. It was welcomed by the 
 Government, who last year announced that there would be such a system. 
 It is for those reasons, and to ensure the independence and impartiality of the pensions regulator tribunal, that we consider this arrangement to be the most suitable, as it allows the tribunal to be run by the Court Service. As hon. Members are probably aware, the tribunal that reviews decisions of the Financial Services Authority, the financial services and markets tribunal, is also run by the Court Service, and the Lord Chancellor is empowered to make rules for it. It is likely that the pensions regulator tribunal will be based with that tribunal and will use the same premises, support staff and tribunal members—although there might be some further appointments of members with pension knowledge. 
 Although the Lord Chancellor is not required to consult on rules made under the clause, there was consultation on the rules of procedure for the financial services and markets tribunal and we anticipate that that will be the case for the tribunal that we are now proposing. 
 I hope that the hon. Gentleman will agree that it is important that the tribunal is run by the Court Service and that—as recommended by the Leggatt report—it sits within the auspices of the Department for Constitutional Affairs. We want to make it clear that in terms of proper procedure and human rights we are doing the right thing when decisions are challenged. Therefore, a tribunal is important. Despite the hon. Gentleman's misgivings, I wonder whether he might consider withdrawing the amendment.

Nigel Waterson: I have misgivings but I am sure that I will get over them. I have fond memories of Sir Andrew Leggatt, if not of his report. I remember on one occasion flying him out to Tokyo, where he sat as a High Court judge in the British embassy compound in respect of a large piece of litigation that I was handling.

Malcolm Wicks: I thought he was a pilot.

Nigel Waterson: No; a large body of QCs, juniors, solicitors and all manner of people were flying out for this litigation. He was a charming dinner companion. His report seems to have slipped through the net in terms of my preparation. Therefore, suitably covered in embarrassment, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 76 ordered to stand part of the Bill.

Schedule 4 - The pensions regulator tribunal

Malcolm Wicks: I beg to move amendment No. 85, in
schedule 4, page 181, line 37, leave out from 'reference' to end of line 38 and insert 
 'to the Tribunal under this Act or any provisions in force in Northern Ireland corresponding to this Act'.

Win Griffiths: With this it will be convenient to discuss Government amendments Nos. 88, 89 and 64 to 67.

Malcolm Wicks: I find it encouraging, if I may say so, Mr. Griffiths, that I am not the only one who is jumping ahead today. We are clearly both eager for a caffeine intake at some stage. All of these amendments propose technical changes.
 Amendment agreed to. 
 Amendments made: No. 86, in 
schedule 4, page 182, line 14, at end insert— 
 '( ) for the Tribunal to deal with urgent cases expeditiously;'.
 No. 87, in 
schedule 4, page 182, line 15, leave out paragraph (e).
 No. 88, in 
schedule 4, page 182, line 39, leave out 'the statutory maximum' and insert 
 'level 5 on the standard scale'.
 No. 89, in 
schedule 4, page 183, line 25, after 'appear' insert 'to the Tribunal'.—[Malcolm Wicks.]
 Schedule 4, as amended, agreed to.

Clause 77 - References to the Tribunal

Amendments made: No. 64, in 
clause 77, page 49, line 28, leave out 'a referral' and insert 'a reference'.
 No. 65, in 
clause 77, page 49, line 32, leave out 'a referral' and insert 'a reference'.
 No. 66, in 
clause 77, page 49, line 35, at beginning insert 'in either case,'.—[Malcolm Wicks.]
 Clause 77, as amended, ordered to stand part of the Bill.

Clause 78 - Appeal on a point of law

Nigel Waterson: I beg to move amendment No. 243, in
clause 78, page 50, line 24, leave out 'with permission.'.

Win Griffiths: With this we may discuss amendment No. 244, in
clause 78, page 50, line 29, leave out subsection (2).

Nigel Waterson: This morning's proceedings show that the Opposition were sensible to suggest that we did not need an extra sitting to discuss the regulator under this part of the Bill. The amendments are designed merely to remove the need for permission to appeal: there should be an automatic right of appeal. I
 hope that that proposal commends itself to the Government.

Malcolm Wicks: The amendments would remove the provision whereby a directly affected party can appeal to the Court of Appeal or, in Scotland, the Court of Session only with the permission of the tribunal, the Court of Appeal or the Court of Session. I assure hon. Members that there is nothing unusual about that provision. Only in certain cases is permission to appeal not required—for example, if the appeal is against a committal order, a refusal to grant habeas corpus, or a secure accommodation order. The requirement for permission to appeal reflects the rules of most other tribunals and proceedings in county courts and the High Court.
 If the tribunal refuses permission to appeal, directly affected parties may apply to the Court of Appeal or the Court of Session for permission. Permission to appeal will be given only if the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard. There is then a further right of appeal to the House of Lords.

Nigel Waterson: I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendment made: No. 233, in 
clause 78, page 51, line 3, leave out 
 'The Lord Chancellor may by rules' 
 and insert 
 'Rules made under section 76 may'.—[Malcolm Wicks.]
 Clause 78, as amended, ordered to stand part of the Bill.

Clause 79 - Redetermination etc by the Tribunal

Amendment made: No. 67, in 
clause 79, page 51, line 8, leave out 
 'to appeal under section 78(2)(a)' 
 and insert 
 'under section 78(2)(a) to appeal'.—[Malcolm Wicks.]
 Clause 79, as amended, ordered to stand part of the Bill. 
 Clause 80 ordered to stand part of the Bill. 
 It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
 Adjourned till this day at half-past Two o'clock.